On 18 February 2022, the Directive (EU) 2022/211 of the European Parliament and of the Council of 16 February 2022 amending Council Framework Decision 2002/465/JHA, as regards its alignment with Union rules on the protection of personal data was published in the Official Journal of the European Union (OJ).

In Article 1(10) of Framework Decision 2002/465/JHA, the following subparagraph is added:

‘Insofar as the information used for purposes referred to in the first subparagraph, points (b), (c) and (d) includes personal data, it shall only be processed in accordance with Directive (EU) 2016/680 of the European Parliament and of the Council, and in particular Article 4(2) and Article 9(1) and (3) thereof.

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 11 March 2023.

On 1 February 2022, the European Securities and Markets Authority (ESMA) sent a letter to the European Commission (EC) providing its views on the clearing obligation for Pension Scheme Arrangements (PSA) and recommending the end of the current exemption from the clearing obligation with a one year implementation period.

ESMA, following its assessment, concludes that PSAs are, to a large extent, operationally ready to clear their OTC derivatives but they should be given sufficient time before a clearing obligation for PSAs takes effect. Therefore, ESMA recommends to start applying the clearing obligation to PSAs from 19 June 2023.

The proposed start of the clearing obligation may also feed into the European Union’s broader clearing strategy, an ongoing endeavour to build clearing capacity within the Union and to reduce reliance on UK CCPs, to which ending the exemption can contribute.

Based on ESMA’s recommendation, the EC will decide on whether to grant the suggested extension of the exemption until June 2023.

On 9 January 2022, the European Commission extended the time-limited equivalence for UK Central Counterparties and launched consultation to expand central clearing activities in the EU.

Post-trade infrastructures, such as clearing and settlement, are the backbone of capital markets. So efficient, competitive post-trade markets in general – and clearing in particular – will help create deeper, more liquid markets in the EU. A strong, competitive and integrated financial system will in turn be the basis for a robust and vibrant economy.

In order to address the financial stability concerns surrounding the over-reliance on systemic non-EU Central Counterparties (CCPs) and further develop competitive clearing services in the EU, the European Commission plans to come forward in the second half of 2022 with measures to make EU CCPs more attractive to market participants. First, by building domestic capacity: measures to make the EU more attractive as a competitive and cost-efficient clearing hub, and so incentivise an expansion of central clearing activities in the EU, will be needed. Second, if the EU is to increase its capacity for central clearing, it is essential that any related risks be properly managed and the EU's supervisory framework for CCPs strengthened, including through a stronger role for EU-level supervision.

To be in a better position to propose meaningful changes to the rules applicable to CCPs, their clearing members and the clients of these clearing members, the Commission is also launching a targeted public consultation and a call for evidence. Both the consultation and call for evidence will look at ways to

• improve the attractiveness of EU CCPs,
• reduce the exposure to systemic non-EU CCPs, and
• enhance the supervision of EU CCPs. 

In order to achieve this and avoid any short-term financial stability risks, the Commission is also adopting today a new equivalence decision granting access to UK CCPs for another three years, until 30 June 2025.

That decision has been published in the Official Journal of the European Union (EU): for the purposes of Article 25 of Regulation (EU) No 648/2012, the legal and supervisory arrangements of the United Kingdom of Great Britain and Northern Ireland applicable to central counterparties already established and authorised in the United Kingdom of Great Britain and Northern Ireland on 31 December 2020 shall be considered to be equivalent to the requirements laid down in Regulation (EU) No 648/2012.

That decision applies from 1 July 2022 until 30 June 2025.

On 2 February 2022, the European Securities and Markets Authority (ESMA) published a document on cross-border distribution of investment funds.

Regulation (EU) 2019/1156 on facilitating cross-border distribution of collective investment undertakings requires ESMA to publish on its website the hyperlinks to the websites of competent authorities where they publish complete and up-to-date information on the applicable national laws, regulations and administrative provisions governing marketing requirements for AIFs and UCITS, as well as the summaries thereof, and the hyperlinks to the websites of competent authorities where they publish and maintain complete and up-to-date list of the fees and charges they levy for carrying out their duties in relation to the cross-border activities of fund managers.

This document contains both hyperlinks and the summaries of national rules governing marketing requirements, which were provided by competent authorities.

On 4 February 2022, the European Securities and Markets Authority (ESMA) publishes Compliance table on Guidelines on marketing communications under the Regulation on the cross-border distribution of funds.

The first document shows competent authorities willingness to comply or intend to comply with ESMA’s Guidelines on marketing communications under the Regulation on the cross-border distribution of funds (ESMA34-45-1272). 

On 2 February 2022, the European Securities and Markets Authority (ESMA) published a supervisory briefing in relation to firms using tied agents in the MiFID II framework.

Following the UK withdrawal from the EU, ESMA has been monitoring the behaviour of firms in order to understand whether their interaction with EU-based clients is done in a way that is compliant with the MiFIR and MiFID legislation (including the regimes providing the conditions for third-country firms to provide investment services and activities in the Union). In this context, some practices concerning investment firms using tied agents recently emerged as a potential source of circumvention of the abovementioned legal framework.

Furthermore, ESMA believes that these issues have a more general relevance, and it is thereby important to identify the supervisory expectations on firms using tied agents in a convergent manner across the Union. Therefore, this supervisory briefing takes into account all cases where an EU firm uses tied agents; a specific focus is given to cases where tied agents are legal persons that are controlled or have close ties with other entities or third-country entities.

The content of this supervisory briefing is not subject to any ‘comply or explain’ mechanism for NCAs and it is not binding.

On 10 February 2022, the EU published in its Official Journal (OJ) Corrigendum to Commission Delegated Regulation (EU) 2021/2268 of 6 September 2021 amending the regulatory technical standards laid down in Commission Delegated Regulation (EU) 2017/653 as regards the underpinning methodology and presentation of performance scenarios, the presentation of costs and the methodology for the calculation of summary cost indicators, the presentation and content of information on past performance and the presentation of costs by packaged retail and insurance-based investment products (PRIIPs) offering a range of options for investment and alignment of the transitional arrangement for PRIIP manufacturers offering units of funds referred to in Article 32 of Regulation (EU) No 1286/2014 of the European Parliament and of the Council as underlying investment options with the prolonged transitional arrangement laid down in that Article.

On page 41, in Annex VI, in points (25) and (26) of the amendments to Annex VI to Commission Delegated Regulation (EU) 2017/653:

• for: ‘(25) after point 75, the following heading is inserted: “Specific requirements for PRIIPs with a recommended holding period of less than one year”; (26) after point 76, heading ‘Calculation of ratios’ is deleted;’,
• read: ‘(25) after point 76, heading ‘Calculation of ratios’ is replaced by the following heading: “Specific requirements for PRIIPs with a recommended holding period of less than 1 year”;’.

On 22 February 2022, the European Union (EU) published in its Official Journal (OJ) Commission Delegated Regulation (EU) 2022/244 of 24 September 2021 supplementing Regulation (EU) 2019/2033 of the European Parliament and of the Council with regard to regulatory technical standards specifying the amount of total margin for the calculation of the K-factor ‘clear margin given’ (K-CMG).

The Regulation provides for:

Calculation of the amount of the total margin required:

1. The amount of the total margin referred to in Article 23(2) of Regulation (EU) 2019/2033 shall be the required amount of collateral comprising the initial margin, variation margins and other collateral, as required by the clearing member based on its margin model of the investment firm for the trading desks subject to K-CMG. For the purposes of this Regulation, ‘trading desk’ shall mean a trading desk as defined in point (144) of Article 4(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council (3).

2. Where the clearing member does not differentiate between margins that are required for the trading desk that is subject to K-CMG and margins that are required for other trading desks, the investment firm shall consider the total of margins required for all trading desks as margins under paragraph 1.

3.Fees paid by the investment firm to the clearing member for making use of its clearing member services shall not be considered as margins under paragraph 1.

4. Where the clearing member updates the total margin required more than once during a day, the total margin required on that day shall be the highest of those amounts of total margins required by the clearing member during that day.

5. Where an investment firm makes use of the services of more than one clearing member for the trading desks subject to K-CMG, the amount of the total margin referred to in Article 23(2) of Regulation (EU) 2019/2033 shall be calculated on a daily basis adding the amounts of margins required by each clearing member as laid down in paragraph 1 of this Article.

Prevention of arbitrage:

1. The requirement laid down in Article 23(1), point (e), of Regulation (EU) 2019/2033 shall be fulfilled where all the following conditions are satisfied:

(a) where the investment firm calculates K-CMG capital requirements on a portfolio of cleared positions assigned to one trading desk, it applies the same methodology to all the positions of that trading desk for a continuous period of at least 24 months or the business strategy or operations of the group of dealers of that trading desk has changed to the extent that they can be considered a different trading desk;

(b) the investment firm uses K-CMG consistently across trading desks that are similar in terms of business strategy and trading book positions;

(c) the investment firm has policies and procedures in place showing that the choice of portfolio(s) subject to K-CMG would reflect the risks of an investment firm’s trading book positions, including the expected holding periods, the trading strategies applied and the time it could take to hedge out or manage risks of its trading book positions;

(d) the investment firm has policies and procedures in place enabling it to compare the capital requirements calculated on the basis of K-CMG with the capital requirements calculated on the basis of K-NPR and to adequately reasoning any difference between them taking into account the factors set out in paragraph 2 in each of the following cases: (i)where a change in the business strategy of a trading desk results in a change of 20 % or more in the capital requirements for that trading desk based on the K-CMG approach; (ii) where a change in the clearing member’s margin model results in a change in the margins required of 10 % or more for the same portfolio of underlying positions for a trading desk;

(e) the investment firm makes use of the outcome of the K-CMG calculation in its risk management framework and regularly compares the results of its own risk assessment with the margins required by clearing members;

(f) the investment firm has compared the capital requirements calculated by K-CMG with the capital requirements calculated by K-NPR for each trading desk at the point of the assessment by the competent authority, and has provided the competent authority with adequate justification of any difference between them taking into account the factors set out in paragraph 2.

2. For the purposes of paragraph 1, points (d) and (f),the competent authority shall take into account the following factors in order to assess whether the difference in capital requirements calculated in application of K-CMG and K-NPR is justified:

(a) the reference to the relevant trading strategies;

(b) the investment firm’s own risk management framework;

(c) the level of the investment firm’s overall own funds requirements calculated in accordance with Article 11 of Regulation (EU) 2019/2033;

(d) the results of the supervisory review and evaluation process, if available.

On 11 February 2022, the European Securities and Markets Authority (ESMA) published its Sustainable Finance Roadmap 2022-2024 (Roadmap). 

ESMA is actively contributing to the development of the sustainable finance rulebook and to its consistent application and supervision by taking the necessary measures to promote investor protection across the EU. ESMA also engages in risk assessment and market monitoring activities focusing on potential financial stability risks stemming from ESG factors.

Building on ESMA’s 2020 Strategy on Sustainable Finance, the Roadmap sets out ESMA’s deliverables on sustainable finance and how they will be implemented over the next three years. The Roadmap will serve as a practical tool to ensure that ESMA delivers on the wide array of sustainable finance tasks across several sectors in a coordinated way.

ESMA identifies three priorities for its sustainable finance activities in the period from 2022 to 2024:

• Tackling greenwashing and promoting transparency: the combination of growing demand for ESG investments and rapidly evolving markets creates room for greenwashing. Greenwashing is a complex and multifaceted issue which takes various forms, has different causes and has potential to detrimentally impact investors looking to make sustainable investments. Investigating this issue, defining its fundamental features and addressing it with coordinated action across multiple sectors, finding common solutions across the EU, will be key to safeguarding investors.
• Building NCAs’ and ESMA’s capacities: the growing importance of sustainable finance requires NCAs and ESMA to further develop skills beyond their traditional areas of focus to understand and address the supervisory implications of new regulation and of novel market practices in this area. ESMA will help build its, and NCAs’, capacity on sustainable finance through a multi-year training programme and through facilitating the active sharing of supervisory experiences among NCAs. These efforts will also contribute to creating effective and consistent supervision in the area of sustainable finance.
• Monitoring, assessing and analysing ESG markets and risks: the objective is to identify emerging trends, risks and vulnerabilities that can have a high impact on investor protection and on financial markets stability. ESMA will leverage on its data-analysis capabilities to support its, and NCAs’, supervisory work and to promote a convergent approach among NCAs. ESMA will undertake specific activities such as climate scenario analysis for investment funds, CCP stress testing and the establishment of common methodologies for climate-related risk analysis together with other public bodies.

ESMA will address its three priorities with a comprehensive list of actions across the following sectors: investment management, investment services, issuers’ disclosure and governance, benchmarks, credit and ESG ratings, trading and post-trading and financial innovation. Several of these actions will also contribute to fulfilling the European Commission’s 2021 Renewed Sustainable Finance Strategy.

On 21 February 2022, the European Securities and Markets Authority (ESMA) published Sustainable Finance- implementation timeline.

On 7 February 2022, the Autorité des marchés financiers (AMF) announced applying the ESMA guidelines on methodology, oversight function and record keeping under the Benchmarks Regulation.

Published by ESMA on 7 December 2021, these guidelines on methodology, oversight function and record keeping under the Benchmarks Regulation will apply from 31 May 2022. These Guidelines concern administrators of critical or significant benchmarks (guidelines on methodology, oversight function and record keeping) as well as other administrators of non-significant benchmarks with regard to the guidelines on the methodology to be used in exceptional circumstances and the guidelines on oversight function.  

The Guidelines aim at, among other things, ensuring administrators have a common and uniform understanding of the requirements related to the methodology for use in exceptional circumstances, in case of material changes to the methodology, as well as with regard to requirements on oversight function and record keeping.

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Le 7 février 2022, l'Autorité des marchés financiers (AMF) a annoncé appliquer les lignes directrices de l'ESMA sur la méthodologie, la fonction de supervision et la conservation d’enregistrements au titre du règlement sur les indices de référence.

Publiées par l’ESMA le 7 décembre 2021, les orientations sur la méthodologie, la fonction de supervision et la conservation d’enregistrements au titre du règlement sur les indices de référence seront applicables à partir du 31 mai 2022. Elles concernent :

• les administrateurs d’indices de références critiques et significatifs concernant les détails de la méthodologie utilisée, la fonction de supervision et la conservation d’enregistrements ;
• les autres administrateurs d’indices d’importance non significative s’agissant des orientations sur la méthodologie en cas de circonstances exceptionnelles et la fonction de supervision.

Elles visent, entre autres, à ce que les administrateurs aient une compréhension uniforme et commune de certaines exigences, en particulier celles relatives aux méthodologies en cas de circonstances exceptionnelles ou de modifications importantes, ainsi que celles relatives à la fonction de supervision et à la conservation d’enregistrements.

On 7 February 2022, the Autorité des marchés financiers (AMF) announced complying with the ESMA guidelines on settlement fails reporting under article 7 of Regulation on improving securities settlement in the European Union and on central securities depositories (CSDR).

Under article 7 of CSDR, CSDs shall notably provide regular reports to their competent authority, as to the number and details of settlement fails, including the measures envisaged by CSDs and their participants to improve settlement efficiency.

Competent authorities shall also share with the European securities market authority (ESMA) any relevant information on settlement fails.

Published on 8 December 2021 and applicable as of 1 February 2022, the guidelines on settlement fails reporting under article 7 of CSDR intend to clarify the content of the settlement fails reports established by CSDs and the process for the submission of such reports.

The AMF has decided to apply ESMA guidelines and has incorporated these guidelines in its doctrine in a new position DOC-2022-01.

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Le 7 février 2022, l'Autorité des marchés financiers (AMF) a annoncé se conformer aux orientations de l’ESMA concernant la notification des défauts de règlement au titre de l’article 7 du règlement européen sur les dépositaires centraux de titres (CSDR).

Au titre de l’article 7 de CSDR, les dépositaires centraux de titres (DCT) doivent notamment transmettre régulièrement à leurs autorités compétentes des rapports standardisés concernant le nombre de défauts de règlement-livraison et leurs caractéristiques, ainsi que les mesures envisagées pour améliorer l’efficacité du règlement-livraison des transactions.

Les autorités compétentes doivent en outre partager avec l’autorité européenne des marchés financiers (ESMA) toute information pertinente sur les défauts de règlement-livraison.

Publiées le 8 décembre 2021 et applicables à compter du 1er février 2022, les orientations de l’ESMA sur la notification des défauts de règlement ont pour objectif de clarifier le contenu et la procédure de soumission des rapports établis par les DCT.

L’AMF a décidé d’appliquer ces orientations et de les intégrer dans sa doctrine, dans la nouvelle position DOC-2022-01.

On 11 February 2022, the Autorité des marchés financiers (AMF) published the Decision of January 18, 2022 on the modification of the operating rules of the central depository Euroclear France in the context of the entry into application of the settlement discipline regime as provided for by Regulation n°909/2014.

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Le 11 février 2022, l'Autorité des marchés financiers (AMF) a publié la Décision du 18 janvier 2022 relative à la modification des règles de fonctionnement du dépositaire central Euroclear France dans le cadre de l’entrée en application du régime de discipline en matière de règlement tel que prévu par le règlement n°909/2014.

On 15 February 2022, the Association Française des Titres (AFTI) and CFONB informed on French market practice concerning the validation of the net asset value of UCIs by the management company.

Following the strategic projects launched as part of the COVID 19 crisis assessment, AFTI has drafted a document recalling French market practices concerning requests for recalculation of the net asset value (NAV) of UCIs.

Indeed, the COVID 19 crisis was characterized by high market volatility, which led to requests for NAV recalculation for small amounts and impacts, or even none at all. Each recalculation requires the entire process of developing and controlling the NAV to be repeated, and implies a heavy workload, additional costs, delays in the dissemination of the NAV and therefore a significant carbon footprint.

This study reminds us that the calculation of the NAV is a complex exercise whose degree of accuracy depends on a series of external factors. Therefore, in order to ensure a balance between the calculation process and the reflection of the market, this study recommends the implementation of criteria justifying the triggering of a recalculation request.

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Le 15 février 2022, l'Association Française des Titres (AFTI) et le CFONB ont informé sur la pratique de marché française concernant la validation de la valeur liquidative des OPC par la société de gestion.

Suite aux chantiers stratégiques lancés dans le cadre du bilan de la crise COVID 19, l'AFTI a rédigé un document rappelant les pratiques de marché françaises concernant les demandes de recalcul de la valeur liquidative (VL) des OPC.

En effet, la crise COVID 19 a été caractérisée par une forte volatilité des marchés, ce qui a conduit à des demandes de recalcul de VL pour des montants et des impacts faibles, voire nuls. Chaque recalcul nécessite de reprendre l'ensemble du processus d'élaboration et de contrôle de la VNI, ce qui implique une charge de travail importante, des coûts supplémentaires, des retards dans la diffusion de la VNI et donc une empreinte carbone importante.

Cette étude nous rappelle que le calcul de la VNI est un exercice complexe dont le degré de précision dépend d'une série de facteurs externes. Aussi, afin d'assurer un équilibre entre le processus de calcul et le reflet du marché, cette étude recommande la mise en place de critères justifiant le déclenchement d'une demande de recalcul.

On 23 February 2022, the Agence nationale de la sécurité des systèmes d'information (ANSSI) recalled measures to strengthen cyber vigilance in view of international tensions. 

The current international tensions, especially between Russia and Ukraine, can sometimes be accompanied by effects in cyberspace that must be anticipated. Although no cyberthreats targeting French organizations in connection with recent events have been detected for the time being, ANSSI is nevertheless monitoring the situation closely. In this context, the implementation of cybersecurity measures and the reinforcement of the level of vigilance are essential to guarantee the protection of organizations at the right level.

The ANSSI therefore encourages companies and administrations to :

• ensure the proper implementation of the essential IT hygiene measures presented in the ANSSI IT hygiene guide ;
• take into account all the good practices recommended by ANSSI, available on its website;
• carefully follow the security alerts and notices issued by the French governmental center for monitoring, alert and response to computer attacks (CERT-FR), available on its website.

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Le 23 février 2022, l'Agence nationale de la sécurité des systèmes d'information (ANSSI) a rappelé les mesures visant à renforcer la cyber vigilance en raison des tensions internationales. 

Les tensions internationales actuelles, notamment entre la Russie et l'Ukraine, peuvent parfois s'accompagner d'effets dans le cyberespace qu'il convient d'anticiper. Si aucune cybermenace visant des organisations françaises en lien avec les événements récents n'a été détectée pour l'instant, l'ANSSI suit néanmoins la situation de près. Dans ce contexte, la mise en place de mesures de cybersécurité et le renforcement du niveau de vigilance sont indispensables pour garantir la protection des organisations au bon niveau.

L'ANSSI encourage donc les entreprises et les administrations à :

• veiller à la bonne mise en œuvre des mesures essentielles d'hygiène informatique présentées dans le guide d'hygiène informatique de l'ANSSI ;
• prendre en compte l'ensemble des bonnes pratiques recommandées par l'ANSSI, disponibles sur son site internet ;
• suivre attentivement les alertes et avis de sécurité émis par le centre gouvernemental français de veille, d'alerte et de réponse aux attaques informatiques (CERT-FR), disponibles sur son site internet.

On 2 February 2022, the Commission nationale de l'informatique et des libertés (CNIL) recalled 

Cookies are not the only means used to track your online activity: web actors are increasingly resorting to alternatives such as unique digital fingerprinting or tracking your IP address, especially to offer targeted advertising. How to protect yourself?

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Le 2 février 2022, la Commission nationale de l'informatique et des libertés (CNIL) a rappelé

Les cookies ne sont pas le seul moyen utilisé pour tracer votre activité en ligne : les acteurs du web recourent de plus en plus à des alternatives telles que l'empreinte numérique unique ou le suivi de votre adresse IP, notamment pour proposer des publicités ciblées. Comment se protéger ?

On 3 February 2022, the Decree No. 2022-110 of February 1, 2022 modernizing the framework applicable to participatory financing was published in the Official Journal.

The objective of the decree is to bring the national regulatory framework for participatory finance in line with Regulation (EU) 2020/1503 and Directive (EU) 2020/1504.

The decree amends the regulatory part of the Monetary and Financial Code to bring national law into compliance with the provisions of the above-mentioned regulation and directive. It thus completes the amendments made to the legislative part of this code by Ordinance No. 2021-1735 of December 22, 2021 modernizing the framework relating to participatory financing.

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Le 3 février 2022, le Décret no 2022-110 du 1er février 2022 modernisant le cadre applicable au financement participatif a été publié au Journal Officiel.

L'objectif du décret est la mise en conformité le cadre réglementaire national relatif au financement participatif avec le règlement (UE) 2020/1503 et la directive (UE) 2020/1504.

Le décret procède aux modifications de la partie réglementaire du code monétaire et financier pour rendre le droit national conforme aux dispositions du règlement et de la directive précités. Il complète ainsi les modifications apportées à la partie législative de ce code par l’ordonnance no 2021-1735 du 22 décembre 2021 modernisant le cadre relatif au financement participatif.

On 11 February 2022, the Autorité des marchés financiers (AMF) published the Decision of February 1, 2022 concerning the amendment of the rules of the Euronext Access Multilateral Trading Facility (MTF) and, in particular, the deletion of the provision relating to the number of securities that may be issued on a securitized derivative from the chapter devoted to warrants and certificates.

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Le 11 février 2022, l'AMF a publié la Décision du 1er février 2022 concernant la modification des règles du système multilatéral de négociation (SMN) Euronext Access et notamment la suppression dans le chapitre dévolu aux warrants et certificats de la disposition relative au nombre de titres pouvant être émis sur un dérivé titrisé.

On 2 February 2022, the Autorité des marchés financiers (AMF) updated its policy on the marketing communications of collective investments. 

Following the application of ESMA’s Guidelines on marketing communications, the AMF is updating its Position-Recommendation DOC-2011-24 on the drafting of marketing materials and the marketing of collective investment undertakings in order to harmonise its policy for investment management companies and distributors.

The AMF is making changes to its Position-Recommendation DOC-2011-24 to reflect the ESMA Guidelines in order to:

• Adjust the wording of current statements or positions that are similar in content to the Guidelines. In this case, the title of the position-recommendation is adjusted, without affecting the substance;
• Add the new references provided for in the Guidelines via positions. These include, for example, the display of disclaimers to clarify the marketing nature of the communication, the display of past or future performance or the increase or decrease in costs, if any, as a result of currency or exchange rate fluctuations.

Where they provide better investor protection, aspects of Position-Recommendation DOC-2011-24 that are not already covered by the Guidelines have been maintained. These include, for example, the presence in marketing communications of a warning when the prospectus of the collective investment is not translated into French, rules specifically applicable to communications relating to financial index and strategy index, and examples of assessment of the clear, accurate and non-misleading nature of the information.

This update provides an opportunity to harmonise the rules applicable to investment management companies and distributors involved in the marketing of collective investments in France in order to ensure uniform protection for all investors, regardless of the status of the party disseminating the marketing communication.

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Le 2 février 2022, l'Autorité des marchés financiers (AMF) a mis à jour sa politique de communications publicitaires des placements collectifs.

A la suite de l'application par l’AMF des orientations ESMA sur les communications publicitaires, l'AMF actualise sa position-recommandation DOC-2011-24 relative à la rédaction des documents commerciaux et la commercialisation des placements collectifs dans un souci d’harmonisation de sa doctrine applicable aux sociétés de gestion et aux distributeurs.

L’AMF modifie sa position-recommandation DOC-2011-24 en tenant compte des Orientations de l’ESMA afin de procéder à :

• Un ajustement rédactionnel des mentions ou positions actuelles qui comportent un contenu similaire aux Orientations. Dans ce cadre, le titre de la position-recommandation est ajusté, sans incidence sur le fond ;
• L’ajout via des positions de nouvelles mentions prévues par les Orientations. Il s’agit, par exemple, de l’affichage des avertissements pour clarifier la nature commerciale de la communication, l’affichage des performances passées ou futures ou encore l’augmentation ou la diminution des coûts, le cas échéant, en raison des fluctuations de la devise ou des taux de change.

Les éléments de la position-recommandation DOC-2011-24 qui ne sont pas déjà prévus par les Orientations ont été conservés lorsqu’ils contribuent à une meilleure protection des investisseurs. Il s’agit par exemple, de la présence dans les communications publicitaires d’un avertissement lorsque le prospectus du placement collectif n’est pas traduit en français, des règles spécifiquement applicables aux communications portant sur des indices financiers et des indices de stratégie ou encore des exemples d’appréciation du caractère clair, exact et non-trompeur de l’information.

Cette mise à jour est ainsi l’occasion de procéder à l’harmonisation des règles applicables aux sociétés de gestion et aux distributeurs impliqués dans la commercialisation en France des placements collectifs afin d’assurer une protection homogène de l’ensemble des investisseurs quel que soit le statut de l’acteur qui diffuse la communication publicitaire.

On 8 February 2022, the Autorité des marchés financiers (AMF) launched a consultation on measures to promote a wider adoption of liquidity management tools by fund managers. 

The AMF is launching a public consultation on several measures that specifically target these existing optional tools (gates, swing pricing, anti-dilution levies). In parallel with the European work on revising the AIFM and UCITS Directives and the Money Market Fund Regulation, the AMF is seeking to create the conditions that will encourage greater adoption of these tools in 2023 while ensuring that investors are properly informed.

Its proposals have several objectives:

• to rebalance the information asymmetry between the funds that do not have liquidity management tools and do not provide information on the lack of these tools and those that do have them and inform investors about them;
• to facilitate adoption by existing funds by opening a transitional period during which those that decide to adopt the ability to activate gates will be required to provide notification by any means, which could be provided as part of a statement covering several funds and no longer as individual notifications for each fund; 
• make fund managers accountable for compliance with their professional obligations in terms of liquidity risk management, particularly those who have chosen not to use such tools, by requiring at least formal recognition of the risks incurred by the funds concerned in the event of exceptional market circumstances.

Contributions should be sent by 15 March 2022 to directiondelacommunication@amf-france.org.

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Le 8 février 2022, l'Autorité des marchés financiers (AMF) a lancé une consultation sur les mesures visant à favoriser une adoption plus large des outils de gestion de la liquidité par les gestionnaires de fonds. 

L’AMF soumet à consultation publique plusieurs mesures visant spécifiquement ces outils optionnels existants (gates, swing pricing, droits ajustables). En parallèle des travaux européens liés aux révisions des directives AIFM et OPCVM et du règlement sur les fonds monétaires, elle souhaite créer des conditions favorables à une adoption plus importante de ces outils au cours de l’année 2023 tout en garantissant une bonne information des porteurs.

Ses propositions poursuivent plusieurs objectifs :

• rééquilibrer l’asymétrie d’information entre les fonds qui ne disposent pas d’outils de gestion de la liquidité et ne communiquent pas sur l’absence de ces outils et les fonds qui en disposent et en informent les investisseurs ;
• faciliter l’adoption par les fonds existants en ouvrant une période transitoire durant laquelle il sera exigé de ceux qui décident de se doter de la possibilité d’activer des gates de fournir une information par tout moyen, qui pourrait être fournie dans le cadre d’une communication couvrant plusieurs fonds et non plus une information individuelle par fonds ;
• responsabiliser les gérants sur le respect de leurs obligations professionnelles en matière de gestion du risque de liquidité des fonds et en particulier ceux qui auraient fait le choix de ne pas se doter de tels outils en exigeant a minima une reconnaissance formalisée des risques encourus par les fonds concernés en cas de circonstances exceptionnelles de marché.

Les contributions doivent être adressées, d’ici le 15 mars 2022, à directiondelacommunication@amf-france.org.

On 23 February 2022, the Autorité des marchés financiers (AMF) announced the creation of a working group on the end-of-life of private equity funds.

The Autorité des Marchés Financiers (AMF) is bringing together industry professionals to formulate proposals for adapting the regulatory framework to the difficulties encountered by management companies.

Asset management companies of private equity funds (FCPRs, FIPs, FCPIs, FPCIs, etc.) face challenges in realising value for their various end-of-life holdings under good terms and within a timeframe that is compatible with the term commitments made at the fund launch, as well as with the relevant regulatory provisions.

Asset management companies looking for buyers for investments held by a fund that is winding up must act with the dual objective of ensuring that the life span of the fund is respected and that the fund is managed in the best interests of investors. This equation may be complex to solve when funds hold investments in distressed companies or when the value creation cycle has not been completed (a situation frequently encountered by funds investing in biotechs, for example).

In light of the challenges, and as announced in its 2022 priorities for action, the AMF intends to adapt the regulatory framework for the end-of-life of private equity funds.

With this in mind, it has set up a working group to propose improvements to the regulatory framework for the end-of-life of private equity funds that would reconcile the need to protect investors with the need to ensure the long-term viability of management companies. The group’s findings should lead to proposals by the summer of 2022.

Version française

Le 23 février 2022, l'Autorité des marchés financiers (AMF) a annoncé la création d'un groupe de travail sur la fin de vie des fonds de capital-investissement.

L’Autorité des marchés financiers (AMF) réunit des professionnels du secteur afin de formuler des propositions d’adaptation du cadre réglementaire aux difficultés rencontrées par les sociétés de gestion.

Les fonds de capital investissement (FCPR, FIP, FCPI, FPCI…) font face à des problématiques de fin de vie, liées aux difficultés rencontrées par leurs sociétés de gestion de portefeuille pour céder les différentes participations dans de bonnes conditions, et dans un calendrier compatible avec les engagements de durée pris lors du lancement du fonds ainsi qu’avec les dispositions réglementaires en la matière.

La recherche d’acquéreurs pour les participations détenues par un fonds arrivant à échéance doit être engagée par la société de gestion avec un double objectif de respect de la durée de vie du fonds et de gestion dans le meilleur intérêt des investisseurs. Cette équation peut être complexe à respecter lorsque les fonds détiennent des participations dans des sociétés en difficulté ou pour lesquelles le cycle de création de valeur n’est pas achevé (situation fréquemment rencontrée pour les fonds investissant dans les biotechs par exemple).

Face à ces enjeux et comme annoncé dans ses priorités d’action pour 2022, l’AMF souhaite adapter le cadre réglementaire de la fin de vie des fonds de capital investissement.

Dans cette perspective, un groupe de travail a été constitué afin de mener une réflexion conjointe pour proposer une amélioration du cadre réglementaire de la fin de vie des fonds de capital investissement qui permette de concilier les enjeux en matière de protection des épargnants et de pérennité de l’activité des sociétés de gestion. Les travaux du groupe de travail devraient aboutir à la formulation de propositions d’ici l’été 2022.

On 6 February 2022, the Decree no. 2022-125 of February 4, 2022 on provisions adapting to European Union law in the area of disclosure requirements, governance of financial products and investor position limits intended to facilitate the financing of companies was published in the Official Journal. 

The text provides for the regulatory implementation of the transposition of the "quick fix" directive, in connection with the legislative adaptations made by Ordinance 2021-1652 of December 15, 2021 on various provisions for adapting to European Union law in the area of disclosure requirements, the governance of financial products and investor position limits intended to facilitate corporate financing. 

The text comes into force on February 28, 2022.

Version française

Le 6 février 2022, le Décret no 2022-125 du 4 février 2022 portant dispositions d’adaptation au droit de l’Union européenne dans le domaine des obligations d’information, de la gouvernance des produits financiers et des limites de position des investisseurs destinées à faciliter le financement des entreprises a été publié au Journal officiel.

Le texte procède à la déclinaison réglementaire de la transposition de la directive dite « quick fix », en lien avec les adaptations législatives réalisées par l’ordonnance no 2021-1652 du 15 décembre 2021 portant diverses dispositions d’adaptation au droit de l’Union européenne dans le domaine des obligations d’information, de la gouvernance des produits financiers et des limites de position des investisseurs destinées à faciliter le financement des entreprises.

Le texte entre en vigueur le 28 février 2022.

On 11 February 2022, Belgium published in the Moniteur Belge Law amending the law of 18 September 2017 on the prevention of money laundering and terrorist financing and on the restriction of the use of cash in order to introduce provisions relating to the status and control of exchange service providers between virtual currencies and legal currencies and custodial portfolio service providers (1).

The main purpose of this law is to amend articles 5 and 136 of the law of 18 September 2017, in order to allow the FSMA to supervise all ATMs installed on Belgian territory allowing the exchange of virtual currencies against legal currencies and prohibit persons governed by the law of a third country third country to offer certain services related to virtual currencies on Belgian virtual currencies. 

This law also provides for the application of a criminal sanction to service providers linked to virtual currencies who offer their services without being registered with the FSMA and to persons governed by the law of a third country who offer on Belgian territory, as usual professional activity, services related to virtual currencies.

Finally, this law corrects some reference errors in articles 120/1, 136 and 137 of the law of 18 September 2017. 

On 23 February 2022, the Financial Services and Markets Authority (FSMA) published a  communication on Cryptocurrencies: new rules for certain service providers.

From 1st May 2022, the activities of certain service providers related to virtual currencies will be regulated in Belgium. These service providers will have to meet a series of conditions related in particular to their professional integrity and compliance with anti-money laundering legislation.

The providers targetted by the new rules are the providers of exchange services between virtual currencies and legal currencies as well as providers of private cryptographic key holding wallets ("wallet providers") established in Belgium. Moreover, Automated Teller Machines (ATM's) installed in Belgium, i.e. vending machines that allow exchange between virtual currencies and legal currencies, will also be subject to the new obligations. The providers governed by the law of a non-European Economic Area are already prohibited from offering these services on Belgian territory.

The service providers concerned will have to register with the FSMA to continue or start their activities. This registration implies compliance with a certain number of conditions of registration and exercise whose control is ensured by the FSMA.

These conditions mainly concern:

• the expertise and professional integrity of the service provider's actual managers (e.g. experience, etc.);
• the quality of certain shareholders of the service provider with regard to the need to guarantee sound and prudent management;
• the organisation and compliance with the rules relating to the fight against money laundering and terrorist financing (e.g. identification of customers).

Permanent compliance with these obligations is a condition for maintaining registration with the FSMA.

On 24 February 2022, the Banque nationale de Belgique (BnB) published Circular NBB_2022_06 / Periodic questionnaire on the prevention of money-laundering and the financing of terrorism.

With this circular, the BnB aims to obtain standardised information from financial institutions to enable it to strengthen its risk-based approach in the exercise of its legal supervisory powers in the fight against money laundering and terrorist financing.

The BnB published four questionnaires for:

• credit institutions,
• life insurance companies,
• stock exchange companies,
• payment institutions and electronic money institutions.

It also published an indicative list of countries that may pose an increased risk of money laundering or terrorist financing.

On 15 February 2022, Belgium published in the Moniteur Belge Royal decree amending the royal decree of 11 October 2012 relating to the issue of Belgian covered bonds by credit institutions governed by Belgian law, the royal decree of 11 October 2012 relating to the portfolio manager within the framework of the issue of Belgian covered bonds by a credit institution governed by Belgian law, the Royal Decree of 12 November 2012 relating to undertakings for collective investment which meet the conditions of Directive 2009/65/EC and the Royal Decree of 25 February 2017 relating to certain public alternative undertakings for collective investment and their management companies, and laying down various provisions.

Alongside this Directive, Regulation (EU) No. 2019/2160 of the European Parliament and of the Council of November 27, 2019 amending Regulation (EU) No. 575/2013 as regards exposures in the form of covered bonds was adopted with a view to making amendments, mainly to Article 129 of the said Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on the prudential requirements applicable to credit institutions and investment firms and amending Regulation (EU) No 648/2012. These changes are essentially aimed at clarifying the eligibility criteria for assets covering covered bonds with a view to benefiting from a favorable weighting of the latter.

In order to clarify and implement certain provisions of the law of April 25, 2014 on the status and control of credit institutions and stockbroking firms as amended by the law of November 26, 2021 and thus complete the transposition of the Covered bonds directive, amendments to the Royal Decree of 11 October 2012 relating to the issue of Belgian covered bonds by credit institutions governed by Belgian law are still necessary. They are the subject of Section 1 of this draft Royal Decree and are mainly intended to specify:

• the eligibility and valuation criteria for the cover assets which may be taken into account for the purposes of constituting the special asset(s);
• the conditions under which issuing credit institutions may make use of the possibility of including derivative contracts in their special portfolio(s);
• the elements to be taken into account for the purposes of hedging and liquidity tests and the composition of the liquidity buffer;
• the powers of the National Bank of Belgium with regard to the limits within which an issuing credit institution may, in terms of volume, issue Belgian covered bonds; and
• the information that credit institutions issuing Belgian covered bonds must provide to holders of Belgian covered bonds.

Some of the modifications made to this royal decree of 11 October 2012 are also made for technical and legal reasons. By way of example, all references made to "similar securities" are repealed since they referred to securities benefiting from the transitional provision provided for in article 35 of the aforementioned law of August 3, 2012, which has since become irrelevant.

The transposition of the Covered Bonds Directive also requires minimal changes to be made to the Royal Decree of 11 October 2012 relating to the portfolio manager in the context of the issue of Belgian covered bonds by a credit institution governed by Belgian law, the royal decree of 12 November 2012 relating to undertakings for collective investment which meet the conditions of directive 2009/65/EC and the royal decree of 25 February 2017 relating to certain public alternative undertakings for collective investment and their companies of management, and bearing various provisions.

Finally, this Royal Decree also aims to transpose certain aspects of Directive (EU) 2019/1160 of the European Parliament and of the Council of 20 June 2019 amending Directives 2009/65/EC and 2011/61/EU as regards the cross-border distribution of undertakings for collective investment.

Draft article 25 sets the date of entry into force of the draft royal decree as 8 July 2022, with the exception of draft article 12 which comes into force on 1 January 2024 and article 23 in draft which comes into force on the tenth day following its publication in the Moniteur Belge.

On 2 February 2022, Financial Services and Markets Authority (FSMA) published Guidelines FSMA_2022_07 implementing the guidance on advertising communications under the Regulation on cross-border distribution of collective investment undertakings from European Securities and Markets Authority (ESMA). 

This document discusses the guidance issued by the ESMA on marketing communications to investors or potential investors in UCITS and UCITS, and the implementation of this guidance by FSMA. It also provides details on the advertising rules that apply to advertising communications of UCIs.

Depending in particular on the characteristics of the undertaking for collective investment or the advertisement, special rules may also apply. Without wishing to be exhaustive, the following rules can be mentioned

• the obligation, according to the SFDR, to ensure that advertising communications do not contradict the information published under the SFDR;
• the obligation for money market funds to include certain information in their marketing materials, according to the MMF Regulation
• the rules of the Code of Economic Law that are applicable, such as those on comparative advertising and those on joint offers.

On 18 February 2022, the Chambre des représentants de Belgique proposed a Motion for a resolution on the protection of the fundamental freedoms of whistleblowers and journalists.

The proposed amendment are as follows:

Replace these applications with the following positions I.1 and I.2 and the following application II: 

"I . D EMANDING TO THE INTERNATIONAL COMMUNITY":  I . 1. to protect freedom of expression and freedom of the press, journalists, whistleblowers and those responsible for public interest publications aimed at monitoring the actions of governments and exposing their misdeeds;

2. not to extradite journalists or whistleblowers who may be at high risk of serious human rights violations because of conditions of detention which may amount to torture or other inhuman treatment;

II. CALLS UPON THE FEDERAL GOVERNMENT: to transpose ambitiously into Belgian law 

the European rules aimed at protecting whistleblowers provided for in Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report violations of Union law;"

On 25 February 2022, the The Federal Council of Ministers approved a preliminary draft law on the protection of persons who report violations of Union or national law found within a legal entity in the private sector.

The preliminary draft aims to transpose the European Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law. The directive aims to strengthen the application of Union law and policies in specific areas by establishing common minimum standards ensuring a high level of protection for persons reporting breaches of Union law. The draft law transposes this "whistleblowers" directive with regard to legal entities in the private sector with regard to the obligations of the federal government.

The draft law aims at the protection of persons reporting violations in the following areas: public procurement, services, products and financial markets and prevention of money laundering and terrorist financing, product security and compliance, transport security, environmental protection, radiation protection and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data, security of networks and information systems and finally the fight against tax and social fraud. It applies to persons who have knowledge of information on the above-mentioned violations in a professional context.

Reporting persons shall benefit from the protection regime provided, on the one hand, that they had reasonable grounds to believe that the information reported was true at the time of the report and that the information fell within the scope of the law and, on the other hand, that they made an internal or external report or made a public disclosure. Protection should in principle be guaranteed regardless of the reporting channel chosen, but the circumstances in which protection occurs are more limited in the case of public disclosure.

The draft requires private sector legal entities with 50 or more workers to put in place reporting channel procedures to allow workers to report information about violations and the company to follow up. Internal reporting should be encouraged but cannot be imposed. The preliminary draft also provides for the obligation to provide external reporting channels to competent authorities. The Federal Institute for the Protection and Promotion of Human Rights is responsible for support measures for whistleblowers.

The preliminary draft is transmitted for opinion to the Council of State.

On 24 February 2022, the Banque nationale de Belgique (BnB) published Communication NBB_2022_05 - Expiry of the possibility of excluding exposures to central banks in the calculation of the leverage.

As stated in its communication NBB_2021_14 of 29 June 2021, the National Bank of Belgium confirms that the temporary measure allowing the exclusion of central bank exposures in the calculation of the leverage ratio will expire on 31 March 2022. This temporary measure is not extended.

Article 429a(5) of Regulation (EU) No 575/2013 allows banking supervisors to allow banks to exclude certain central bank exposures from their leverage ratio, for a maximum of one year, where the institution's competent authority has determined, after consultation with the relevant central bank, that there are exceptional circumstances that justify the exclusion.

This temporary measure was activated in order to enhance the effectiveness of the monetary policy measures implemented in the exceptional context of the COVID-19 pandemic and to support credit institutions in their function of financing the real economy.

The expiry date coincides with the time horizon of the Pandemic Emergency Purchase Programme (PEPP) launched by the Eurosystem.

The European Central Bank considers that it is currently no longer justified to maintain this temporary exclusion measure, given the level of capital currently available in the banking system in the euro area.

On 16 February 2022, the Financial Services and Markets Authority (FSMA) published Circular FSMA_2022_08  on the duty of cooperation of accredited auditors of public open-ended undertakings for collective investment.

This circular applies to undertakings for collective investment governed by Belgian law with a variable number of units which comply with the conditions of Directive 2009/65/EC and to public collective investment undertakings governed by Belgian law with a variable number of units which have opted for the category of authorised investments referred to in Article 183, paragraph 1 1° of the law of 19 April 2014 on undertakings for collective investment and their managers.

It describes the modalities of the accredited auditors' duty of cooperation in the following areas:

• activities and reporting of half-yearly and annual financial statements and reports;
• assessment of the internal control measures and of the reporting about them;
• reporting to the FSMA, including the reporting layout and the special report;
• exchange of information between the accredited auditors and the FSMA, including the signaling function.

On 14 February 2022, the Financial Services and Markets Authority (FSMA) publishes Circular FSMA_2022_08 on conditions of collaboration of approved auditors in public collective investment undertakings with a variable number of units.

Undertakings for collective investment under Belgian law with a variable number of units which comply with the conditions of Directive 2009/65/EC and public collective investment undertakings under Belgian law with a variable number of units which have opted for the category of authorised investments referred to in Article 183, paragraph 1, 1°, of the law of 19 April 2014 relating to undertakings for collective investment and their managers.

This circular describes the modalities of the collaboration mission of the approved auditors in the following areas:

• the work and reports relating to the periodic reports and periodic financial statements ;
• the evaluation of internal control measures and the related reports
• the transmission of reports to the FSMA, including the reporting scheme and the special report; and
• the exchange of information between the approved auditors and FSMA, including the reporting function.

On 18 February 2022, the European Securities and Markets Authority (ESMA)  published Alternative Investment Funds (AIFs) exposures to commercial real estate. 

Recommendation E of the ESRB Recommendation on closing real estate data gaps (ESRB/2016/14) indicates that ESMA is recommended to publish aggregated data on the exposures of the entities subject to its supervision to commercial real estate (CRE) markets in the EU. 

In accordance with the guidance provided in the Annex to the Recommendation the entities under the scope of ESMA supervision are investment funds and the data to be used should be those extracted from the AIFMD database. 

ESMA is publishing data on exposures of AIFs to CRE markets in the EU as of 31st December 2020.

On 25 February 2022, the Financial Services and Markets Authority (FSMA) published a communication explaining the new European rules governing sustainability reporting by listed companies. 

The new reporting is essential to meet the growing demand by investors for reliable and high-quality information on sustainability. The new reporting obligations are gradually entering into force and will apply in full starting with the 2022 financial year.

With the adoption of the Taxonomy Regulation, the European Union has taken an important step towards its goal of redirecting investments towards sustainable economic activities. This regulation creates a framework that determines the extent to which economic activities can be considered environmentally sustainable. It also imposes additional disclosure requirements on certain listed companies. They must provide information on the share of their turnover, capital expenditure (CapEx) and operating expenses (OpEx) that is associated with sustainable economic activities.

It is very important that companies publish reliable sustainability information in a timely manner. Incorrect or late publication would be likely to prevent other players in the financial sector from meeting the growing demand for effectively sustainable investments.

Thus, for example, designers of financial products, such as investment funds and investment insurance, must indicate the extent to which the capital raised is invested in companies whose activities are effectively sustainable. For this purpose, they shall be based on the sustainability information published by those companies. The quality of sustainability communication will therefore also have an impact on companies' access to sources of finance.

The new disclosure requirements for listed companies are gradually entering into force. For the 2021 financial year, the companies concerned will only have to disclose the part of their activities that can be considered sustainable. From the 2022 financial year, they will have to publish more detailed information concerning, among other things, the part of their activities that are actually in line with the European taxonomy.

On 26 February 2022, the Bundesregierung issued a statement on the allies excluding Russian banks from SWIFT. 

In response to continued attacks by Russian forces in Ukraine, the United States, France, Canada, Italy, the United Kingdom, the EU Commission and Germany today (Saturday) evening agreed to further tough financial sanctions against Russia. 

Thus, all the Russian banks that are already sanctioned by the international community and, where necessary, additional Russian banks will be excluded from the international payment services system SWIFT. This is intended to cut off these institutions from international financial flows, which will massively restrict their global operations.  

In addition, the countries decided to further restrict the Russian Central Bank's ability to support the ruble's exchange rate with international financial transactions. The sanctions adopted additionally target individuals and entities in Russia and elsewhere that support the war against Ukraine. In particular, the possibility of wealthy Russians to obtain a so-called golden passport and thus European citizenship for themselves and their family members is to be ended. 

A working group with U.S. and European Union representatives will also be established to ensure the swift implementation of sanctions and to freeze the assets of sanctioned individuals, their families and companies. The countries stressed their readiness to take further measures if Russia does not end its attack against Ukraine and thus against the European peace order.

On 18 February 2022, the Securities and Futures Commission (SFC) published Circular on the updates to the reminder of business continuity planning in view of COVID-19 Vaccination Programme.

In view of the latest wave of COVID-19 infections and the HKSAR Government’s call for people to avoid gatherings and stay at home and ongoing efforts to promote vaccination, the SFC urges licensed corporations to review their business continuity plans with a view to maximizing the number of staff who work from home and to arrange for staff to work in the office only if they conduct critical functions or duties that cannot be performed remotely.  Additionally, licensed corporations are strongly encouraged to consider making arrangements so that only staff who are vaccinated are working in the office.  

To ensure the highest possible level of vaccinations amongst their staff, licensed corporations are also urged to implement facilitative measures, such as vaccination leave and flexible working hours, in encouraging their staff, including those eligible to receive the third dose, to get vaccinated.

On 18 February 2022, the Securities and Futures Commission (SFC) published circular to issuers of SFC-authorized investment products.

In view of the latest wave of COVID-19 infections and increasing number of firms adopting work-from-home arrangements, issuers of SFC-authorized investment products (“Issuers”) are urged to review and maintain an up-to-date and effective business continuity plan (“BCP”).

The BCP should ensure the continuous operations relating to SFC-authorized investment products without undue disruption to protect investors’ interests.  These include product valuation, dealing and trading arrangements, trading of underlying assets, and product risk management.  Issuers are also reminded that they should discuss their BCP with key counterparties and third party service providers, including trustees, custodians, market makers, clearing and settlement brokers, administrators and distributors, and the BCP should take account of these services.

On 22 February 2022, the Securities and Futures Commission (SFC) released consultation conclusions and began a further consultation on a proposal to regulate depositaries (ie, top-level trustees and custodians) of SFC-authorised collective investment schemes (CIS).

In 2019, the SFC launched a consultation proposing to introduce a new regulated activity, Type 13 regulated activity or RA 13, to put depositaries of SFC-authorised CIS under the SFC’s direct supervision (Note 2). Respondents were generally supportive of the proposal, with some seeking clarification of the proposed licensing scope and conduct requirements. 

The SFC has also consulted further on proposed amendments to subsidiary legislation and SFC codes and guidelines to implement the regime.

The RA 13 regime will enhance the regulation of public funds in Hong Kong by regulating how depositaries safeguard scheme assets and oversee scheme operations. The new regulatory framework is in line with those in other leading international markets and is an important part of the SFC’s efforts to develop Hong Kong as an international, full-service asset management centre.

The public is invited to submit their comments on or before 30 April 2022.

On 25 February 2022, the Securities and Futures Commission (SFC) published supplemental circular on streamlined requirements for eligible exchange traded funds adopting a master-feeder structure.

The SFC is prepared to relax the fund size and track record requirements for overseas-listed master ETF. Under the revised requirements, an eligible master ETF must have a fund size of not less than USD 400 million and a track record of more than 1 year at the time of the feeder ETF’s listing on the Stock Exchange of Hong Kong.

Following this, paragraphs 3(b) and 4(c) of the Master-feeder ETF Circular have been amended.

On 11 February 2022, the S.I. No. 46 of 2022 - European Union (Anti-Money Laundering: Central Mechanism for Information on Safe-Deposit Boxes and Bank and Payment Accounts) Regulations 2022 was published in the Irish Statute Book.

The CBI will establish and maintain an information system (to be known as the “Central Mechanism of Ownership of Bank and Payment Accounts and Safe-Deposit Boxes” and in these Regulations referred to as the “Central Mechanism”).

The following information may be requested by the CBI:

1. In respect of the customer-account holder and any person purporting to act on behalf of the customer-account holder:

(i) where the customer-account holder or person acting on behalf of the customer-account holder is a natural person: forename and surname, date of birth, and address (including Eircode, if known),

(ii) where the customer-account holder or person acting on behalf of the customer-account holder is not a natural person: name, and registered address (including Eircode, if known);

2. In respect of the beneficial owner of the customer-account holder:

(i) where the beneficial owner of the customer-account holder is a natural person: forename and surname, date of birth, and address (including Eircode, if known),

(ii) where the beneficial owner of the customer-account holder is not a natural person: name, and registered address (including Eircode, if known);

3. In respect of a bank or payment account:

(i) IBAN,

(ii) account name,

(iii) date of account opening, and

(iv) where applicable, date of account closing;

4. In respect of a safe-deposit box:

(i) where the lessee is a natural person: forename and surname of the lessee, date of birth of the lessee, address (including Eircode, if known) of the lessee, and lease period,

(ii) where the lessee is not a natural person: name of the lessee, registered address (including Eircode, if known) of the lessee, and lease period.

On 4 February 2022, the S.I. No. 45 of 2022 - Central Bank (Supervision and Enforcement) Act 2013 (Section 48(1)) (Investment Firms) (Amendment) Regulations 2022 was published in the Irish Statute Book.

The Regulations relate to the information that the fund administrator, investment business firm, MiFID investment firm shall submit to the Central Bank of Ireland (CBI). The Regulations also provide reporting frequency and reporting deadlines.

On 17 February 2022, Italy published Decree of 13 January 2022 on Methods and timing with which service providers related to the use of virtual currency and providers of digital wallet services are required to communicate their operations on the national territory as well as forms of cooperation between the Ministry of Economy and Finance and the police forces.

For the purposes of the efficient populating of the special section of the register, the present decree establishes the modalities and the timing with which the providers of services relating to the use of virtual currency and the providers of digital portfolio services are required to make the notification referred to in Article 17-bis (8-ter).

The exercise on the territory of the Italian Republic of the services relating to the use of virtual currency and digital portfolio services referred to in Article 1(2)(b) and (c) is reserved to persons registered in the special section of the register. Registration in the special section of the register is subject to the possession of the requirements set out in Article 17-bis , paragraph 2, of Legislative Decree No 141 of 13 August 2010. 

For the purposes of registration in the special section of the register, as from the date of its commencement pursuant to Article 4, paragraph 1, the providers of services relating to the use of virtual currency and the providers of digital portfolio services who intend to carry out their activity, also on-line, in the territory of the Republic, in possession of the requirements set out in Article 17 -bis , paragraph 2, of Legislative Decree no. 141 of 13 August 2010. 17 -bis , paragraph 2, of the legislative decree of 13 August 2010, no. 141, are required to make the notification referred to in Article 17 -bis , paragraph 8 -ter of the legislative decree of 13 August 2010, no. 141. The obligation referred to in the same article is considered fulfilled by means of a communication to the OAM, for the purposes of the efficient populating of the special section of the register. Notification to the OAM ('Organismo per la gestione degli elenchi degli agenti in attività finanziaria e dei mediatori creditizi) is an essential condition for the legal exercise of the activity on the territory of the Republic by providers of services relating to the use of virtual currency and providers of digital portfolio services.

Providers of services relating to the use of virtual currency and providers of digital portfolio services, who, on the date of the opening of the special section of the register referred to in Article 4(1), already carry on the activity, including online, in the territory of the Italian Republic and who meet the requirements referred to in Article 17-bis (2) of Legislative Decree No 141 of 13 August 2010, shall make the notification referred to in paragraph 2 within 60 days of said date. In the event of failure to comply with the aforesaid deadline, the obligation to notify shall be deemed not to have been fulfilled and any exercise of the activity by the aforesaid providers shall be deemed to be abusive.

On 18 february, Banca d'Italia published the "Amendments  to the Guide to the Parameters for trading.

The price variation limits relating to the ETFPlus market are updated forinclude ETN instruments on equity indices.

The new version of the “Guide to parameters” will come into effect on February 28th 2022 .

On 3 February 2022, the CONSOB announced its Compliance with the Guidelines issued by ESMA on settlement fails pursuant to Article 7 of the CSDR (ESMA70-156-4717).

Consob and the Bank of Italy, as competent authorities for the supervision of Italian central depositories, comply with the " Guidelines on reporting failed regulations pursuant to Article 7 of the CSDR ", adopted by the European Financial Instruments Authority and markets (ESMA) on 24 September 2021, integrating them into their respective supervisory practices.

The Guidelines , published on ESMA's website in all the official languages ??of the Union on 8 December last, provide operational guidelines on the content of the data that must be reported by CSDs to the competent authorities pursuant to Article 7 (1) of CSDR and the modalities of data exchange between the latter and ESMA; the operational indications contained in the Guidelines also apply to the procedures for the determination, pursuant to article 7 (9) of the CSDR , of the participants in a CSD who, in a constant and systematic manner, do not fulfill the obligations to deliver financial instruments.

The Guidelines are also available on the Consob institutional website in the Italian version, together with the full text of the " Final report " in English (containing the summary of the responses to the consultation and the consequent observations of ESMA), useful for allowing a correct application of the Same guidelines.

Central securities depositories subject to the supervision of the Italian authorities are required to comply with the interpretative guidelines provided by ESMA through the Guidelines subject of this notice, applicable, according to the provisions of paragraph 1 thereof, starting from the date of entry into force of the regulatory technical standards on the discipline of the regulation, i.e. from 1 February 2022.

ESMA was informed of this compliance pursuant to Regulation (EU) no. 1095/2010 .

The Commission, with a Notice dated February 3, 2022, revoked:

• Communication no. 9019104 of 2 March 2009, concerning "The intermediary's duty to behave fairly and transparently when distributing illiquid financial products";
• Communication no. 0097996 of 22 December 2014, concerning the "Communication on the distribution of complex financial products to retail customers". 

On 1 February 2022, Italy published Decree of 1 December 2021 of the Ministry of Economic Development on Terms, conditions and methods of granting contributions for the support of programs and initiatives recipients of the Fund for Sustainable Growth admitted to subsidized loans of the FRI (Revolving Fund for the support of enterprises and investments in research), aimed at the ecological and circular transition in the areas of the "Italian Green New Deal".

In order to contribute to the pursuit of the aims of the Green and Innovation Deal through a facilitative measure to support initiatives that contribute to the ecological and circular transition that are innovative, highly sustainable and take into account social impacts, this decree governs the terms, conditions and procedures for the intervention of the Fund for Sustainable Growth by granting facilities in the form of a contribution to support the implementation of programmes and initiatives eligible for subsidised financing from the resources of the FRI. 

Under the eligible programmes referred to in In the context of the eligible programmes referred to in Article 4, the following may benefit from the facilities: 

a) enterprises carrying out the activities referred to in a) enterprises carrying out the activities referred to in Article 2195 of the Civil Code, numbers 1) and 3), including craft enterprises producing goods as referred to in Law No 443 of 8 August 1985; 

(b) agro-industrial undertakings carrying out mainly industrial activities; 

c) undertakings carrying out ancillary activities referred to in (c) undertakings carrying out ancillary activities referred to in Article 2195 of the Civil Code, in favour of the enterprises under letters a) and b); 

d) research centres. 

On 21 February 2022, the presented the reform of the Luxembourg Business Registers (LBR).

The transformation of the LBR will be structured around three key initiatives and will be implemented by the end of 2023:

• Implement the necessary adaptations to the legal framework by introducing, among other things, sanctioning powers. Currently, the administrator is not empowered to enforce the legal obligations to file and update data. The government bill gives him sanctioning powers, but without making him a regulator. The primary objective is to optimise its role as a centralising authority for essential information on entities registered in the Grand Duchy of Luxembourg. The same applies to the management of the Beneficial Owners Register (RBE). As the latter represents a key tool in the fight against money laundering and terrorist financing, the aim is to facilitate access to it for national authorities (amended law of 13 January 2019), so that they can effectively use the available data.
• Establish the target operating model and define the required processes.
• The LBR intends to deepen the support provided to registered entities in order to comply, in particular through individualised monitoring. 
• Invest in technology (digitisation of forms, secure platform, etc.), increase capacity (doubling of staff from 2021 to 2023) and optimise know-how (quality of support) to achieve the LBR's new operational state.

The minister and the LBR director Yves Gonner also presented the new electronic platform. Alongside the website, this IT tool makes it possible to exchange information securely between the administrator and its users, with a view to accelerated, automated and continuous communication. The platform has a double advantage:

• Access a large volume of information automatically and quickly
• Digitalising the services offered in order to simplify administration and make them more user-friendly

Finally, this tool allows consultation of the RCS and the RBE, both for administrations and for the national and international professional public. Thus, during the year 2021, nearly 20 million documents were consulted and downloaded from the LBR website.

On 25 February 2022, Luxembourg Ministry of Justice published ML/TF vertical risk assessment: Legal persons and legal arrangements (February 2022).

The National risk assessment (NRA) 2020 assessed the risk of misuse of its legal persons and legal arrangements as “High”. Considering the relevance of the corporate sector to Luxembourg’s economy and the findings of the NRA 2020, the Ministry of Justice  decided to conduct this specific risk assessment (the LPA risk assessment), which focuses on legal persons and legal arrangements. In order to produce a comprehensive report, two different analyses were performed. First, the risk of misuse of the country’s corporate sector for ML/TF purposes (the Corporate risk) was assessed by studying Luxembourg’s capacity to obtain and maintain basic and beneficial ownership information. This should highlight the overall risks pertaining to legal persons and legal arrangements. Second, a more granular analysis was performed to assess the specific ML/TF risks of each type of legal person created in Luxembourg and the type of legal arrangement created in Luxembourg (the Entity-type specific risk).

The methodology applied in the LPA risk assessment is explained in the first section of this report.  The risk assessment itself is developed in the sections that follow, starting with a general overview of the corporate sector in Luxembourg. The first subsection of this report explores the Corporate risk, including the corporate inherent risk and the effect of existing mitigating factors, yielding a residual risk level for the corporate risk assessment. The following subsection of the report provides the same analysis (with some adjustments) with regard to the Entity-type specific risk and results in residual risk levels per type of legal person and legal arrangement. Suggested recommended actions for further reducing the vulnerabilities identified in the assessment process are compiled in a separate document.

On 28 February 2022, the Commission de Surveillance du Secteur Financier (CSSF) published the user guide for the  annual survey for the year 2021 AML/CFT questionnaire.

The AML/CFT Questionnaire must be initiated via the eDesk portal by the “AML/CFT Responsible”, who is either:

• the person responsible for compliance with the professional obligations as regards the fight against money laundering and terrorist financing (member of the management body of the entity), or
• the compliance officer at appropriate hierarchical level.

The completion of the survey, however, may be delegated by the AML/CFT Responsible to another person (see part 4.2.3.2 of this user guide).

However, the AML/CFT Responsible will have the ultimate responsibility for the adequate completion of the survey that will be submitted to the CSSF.

The answers to the annual survey for the year 2021 have to be submitted through the CSSF eDesk portal the latest by 15 April 2022.

On 7 February 2022, the Commission de Surveillance du secteur financier (CSSF) updated the form for the declaration of honour for natural persons.

The declaration shall be filled in electronically and a signed paper version shall be sent to the CSSF.

On 10 February 2022, the Commission de Surveillance du secteur financier (CSSF) updated the eDesk – Market Entry Form – User Guide.

The aim of this application is to collect standardised key information in relation to money laundering and terrorist financing risks (“ML/FT risk”) to which the professionals supervised by the CSSF for AML/CFT purposes are exposed to and in relation to the measures they put in place to mitigate these risks.

The CSSF draws your attention to the fact that the AML/CFT Market Entry Form (here-after “Market Entry Form”) for Funds must be completed for any submission of an application for the set-up of a UCITS, UCI Part II, SIF, SICAR, or when asking authorisation of a label (ELTIF, EUSEF, EUVECA or MMF).

The Market Entry Form must be renewed when requesting approval of an additional sub-fund in a Fund to add sub-Fund related information and in the same time to update any information previously submitted which is no longer valid as from the last Market Entry Form.

The Market Entry Form for IFMs must be completed for any submission of an application for the setup of an authorised Investment Fund Manager or the registration of an Investment Fund Manager. 

For authorised IFMs, the Market Entry Form must be renewed when requesting approval of an additional licence, a merger, a licence extension including request to manage an ELTIF or a change in the shareholder structure of the IFM (i.e. market entry with new qualified shareholder) and in the same time to update any information previously submitted which is no longer valid. 

On 21 February 2022, the Commission de Surveillance du Secteur Financier (CSSF) updated the FAQ CBDF - Notification procedures.

The following Frequently Asked Questions (FAQs) in relation to the CBDF rules, i.e. the rules regarding cross-border distribution of collective investment undertakings (as introduced into the Luxembourg laws of 17 December 2010 and of 12 July 2013 following Directive (EU) 2019/1160), aim at highlighting the changes for notifications to the CSSF as from 2 August 2021.

This document will be updated when necessary and the CSSF reserves the right to adapt its approach to any matter covered by the FAQs at any time.

You should regularly check the website of the CSSF in relation to any matter of importance to you to see if questions have been added and/or positions have been altered.

In addition to this document, you can find more detailed information in the Circular CSSF 11/509 (as amended by Circular CSSF 21/778).

On 8 March 2022, the Commission de Surveillance du Secteur Financier (CSSF) published a communication on the reactivation of the IFM notifications on fund issues and large redemptions via eDesk.

On 25 February 2022, the CSSF implemented a specific monitoring of the largest investment fund managers (“IFM”) in view of the specific circumstances and risks to which these companies are exposed to as a result of the prevailing market conditions relating to the current situation in Ukraine. Since then, these IFMs have had to notify the CSSF of significant developments and issues as well as on related decisions and measures taken by IFMs.

The information collected serves the CSSF to perform its daily supervision and as a basis to support discussions with other authorities and with market players to identify issues at an early stage and to assist with the resolution of these.

All IFM concerned by the notification on fund/IFM issues and/or large redemptions (hereafter “IFM Notification”) have been contacted by the CSSF.

An IFM Notification has to be transmitted to the CSSF via eDesk only if the following events occur:

• significant events/issues affecting the functioning of the IFM or the investment funds managed by the IFM (e.g. valuation, liquidity), including also the impact of restrictive measures in response to the current situation in Ukraine if applicable;
• larger redemptions at the level of Luxembourg regulated investment funds (UCITS, Part II UCI, SIF) managed by the IFM (i.e. daily net redemptions exceeding 5% of the NAV, net redemptions over a calendar week exceeding 15% of the NAV and/or application of gates/ deferred redemptions).

For the IFM that have been contacted by the CSSF, some specific additional information has also been requested if the IFM manages individual (sub-)fund(s) with a combined direct or indirect exposure (including exposure gained through derivatives) exceeding 10% of their Total Net Assets (TNA) to Russian and/or Ukrainian issuers.

Further details on the IFM Notification, the scope of application and additional explanations assisting IFM infilling in the notification are outlined in the dedicated section of the CSSF eDesk Portal homepage.

The IFM Notification remains in place until further notice by the CSSF.

In this context, the CSSF wants to inform the industry that the reporting “IFM Notification – Early Warning”, which is only relevant for a limited number of UCITS that have, in the past, been contacted directly by the CSSF, is suspended until further notice.

On 1 February 2022, the Commission de Surveillance du Secteur Financier (CSSF) published a press release 22/03 on monitoring the quality of transaction reports received under Article 26 of MiFIR.

This press release relates to the obligation for credit institutions and investment firms to report transactions in financial instruments as set out in Article 26 of Regulation (EU) N° 600/2014 (“MiFIR”). It informs on the number of reporting entities as well as the number of reports received by the CSSF in 2021 and aims more particularly to inform all reporting entities on the quality and completeness campaigns that the CSSF conducted during the year 2021 as well as to announce the topics that will be the subject of dedicated campaigns during the year 2022. The last part of the press release includes a list of topics that have already been subject of a specific campaign and for which details are available in previous communications.

In this press release, references to a specific “Field” refer to the fields in Table 2 of Annex I of Commission Delegated Regulation (EU) 2017/590 (“RTS 22”).

On 1 February 2022, the Commission de Surveillance du Secteur Financier (CSSF) published Circular CSSF 22/798 amendment to Circular CSSF 12/548.

Circular CSSF 12/548 is amended as follows:

In Section 1, point a., the first paragraph is amended as follows:

“In accordance with Article 5(1) of the Regulation, a natural or legal person who has a net short position in relation to the issued share capital of a company that has shares admitted to trading on a trading venue shall notify the relevant competent authority, in accordance with Article 9, where the position reaches or falls below the relevant notification threshold which is 0.2% 0.1% of the issued share capital of the company concerned, and each 0.1% above that.”

The present circular shall apply with immediate effect.

On 3 February 2022, the Commission de Surveillance du Secteur Financier (CSSF) published the Circular 21/793 on electronic transmission of the annual closing documents to the CSSF.

The purpose of this circular is to detail the procedure for the electronic transmission to the CSSF of the annual closing documents of Specialised PFS (hereinafter "PFS"). 

From now on, the annual closing documents must be submitted exclusively via the eDesk portal.
The eDesk portal can be accessed at  edesk.apps.cssf.lu/edesk-dashboard/dashboard/specpfs.

The list of relevant annual closing documents is published and maintained on the homepage of the eDesk portal and must be consulted by the PFS. 

On 18 February 2022, the Commission de Surveillance du Secteur Financier (CSSF) issued a warning concerning the usurpation of the name CSSF.

The Commission de Surveillance du Secteur Financier (CSSF) warns the public of unknown persons who send emails with the address format secure@cssf.services, presenting themselves as a CSSF agent, and ask the recipient to divulge confidential information.

The CSSF would like to specify that only emails with the address format @cssf.lu are used for its email communications.

On 24 February 2022, the Eidgenössische Finanzmarktaufsicht (FINMA) published Audit points for information technology.

This is a standard audit programme that is to be applied in principle per covered element in this audit area for each intervention in accordance with the audit strategy (margin no. 28 ff FINMA-Circ. 13/3 "Auditing"). It is the responsibility of the audit team to adapt the standard audit programme to the specific situation (size, business model, organisation, processes, risk exposure, etc.) of the audited institution. If the specified audit procedures are not performed in full, a meaningful explanation should be provided in the working papers. The audit items marked with an asterisk (*) are not applicable for all banks in supervisory categories 4 and 5.

For outsourced IT functions within the meaning of FINMA-Circular 18/3 "Outsourcing", the facilitations of margin 36.1-36.3 FINMA-Circular 18/3 also apply to institutions pursuant to Art. 47a to 47e ERV, which must be taken into account appropriately when performing the subsequent audit procedures.

Version française

Le 24 février 2022, l'autorité fédérale de surveillance des marchés financiers (FINMA) a publié des points d'audit pour les technologies de l'information.

Il s'agit d'un programme d'audit standard qui doit être appliqué en principe par élément couvert dans ce domaine d'audit pour chaque intervention conformément à la stratégie d'audit (marge n° 28 ff FINMA-Circ. 13/3 ""Auditing""). Il incombe à l'équipe d'audit d'adapter le programme d'audit standard à la situation spécifique (taille, modèle d'affaires, organisation, processus, exposition aux risques, etc.) de l'institution auditée. Si les procédures d'audit spécifiées ne sont pas exécutées dans leur intégralité, une explication significative doit être fournie dans les documents de travail. Les éléments d'audit marqués d'un astérisque (*) ne sont pas applicables à toutes les banques des catégories de surveillance 4 et 5.

Pour les fonctions informatiques externalisées au sens de la circulaire FINMA 18/3 ""Outsourcing"", les facilités de la marge 36.1-36.3 circulaire FINMA 18/3 s'appliquent également aux établissements selon les art. 47a à 47e ORE, qui doivent être prises en compte de manière appropriée lors de l'exécution des procédures d'audit ultérieures.

On 2 February 2022, the Federal Council relaxed the rules on foundation and capital from 1 January 2023. 

The Parliament adopted the revision of the Company Law on 19 June 2020. This reform includes the implementation of the initiative on abusive remuneration, the relaxation of the provisions on the foundation and capital, the thresholds for gender representation in the management bodies of large companies and the strengthening of transparency in the commodities sector. The last two points have already entered into force, as has the extension of the debt-restructuring moratorium adopted as part of this revision. The Federal Council has set the date for the entry into force of the other provisions at 1 January 2023.

Relaxation of foundation and capital provisions: the revision of company law adopted by Parliament also provides for a relaxation of the rules on the foundation and capital of companies. In particular, it introduces a new instrument, the capital fluctuation margin: within this margin, which is fixed in advance, the board of directors is entitled to increase or reduce the company's capital for a period of up to five years.

At its meeting on 2 February 2022, the Federal Council took note of the results of the consultation on an amendment to the Commercial Register Ordinance (CRO), which regulates the modalities. The proposals were generally well received, so that the Federal Council did not have to make any major changes to the draft.

Capital fixed in a foreign currency: the revision of the law on public limited companies allows the share capital to be fixed in a foreign currency. The Federal Council, which is responsible for determining the permissible currencies under the new provisions, has proposed a short list of currencies in the consultation on the revision of the ORC. The majority of the opinions expressed in the consultation were in favour of the proposed approach of a limited choice of currencies and the exclusion of cryptocurrencies. The Federal Council has taken note of the results of the consultation and decided not to amend the list of permitted currencies.

Repeal of the Ordinance against Unfair Remuneration: all rules relating to abusive remuneration will be laid down in law. The Federal Council is therefore repealing the Ordinance against Unfair Remuneration in Publicly Listed Companies (ORAb) with effect from 1 January 2023.

Version française

Le 2 février 2022, le Conseil fédéral a assoupli les règles de fondation et de capital à partir du 1er janvier 2023.

Le Parlement a adopté la révision du Code des sociétés le 19 juin 2020. Cette réforme comprend la mise en œuvre de l'initiative sur les rémunérations abusives, l'assouplissement des dispositions sur la fondation et le capital, les seuils de représentation des femmes dans les organes de direction des grandes entreprises et le renforcement de la transparence dans le secteur des matières premières. Les deux derniers points sont déjà entrés en vigueur, de même que la prolongation du moratoire sur la restructuration de la dette adopté dans le cadre de cette révision. Le Conseil fédéral a fixé la date d'entrée en vigueur des autres dispositions au 1er janvier 2023.

Assouplissement des dispositions sur la fondation et le capital : la révision du droit des sociétés adoptée par le Parlement prévoit également un assouplissement des règles sur la fondation et le capital des sociétés. Elle introduit notamment un nouvel instrument, la marge de fluctuation du capital : à l'intérieur de cette marge, fixée à l'avance, le conseil d'administration a le droit d'augmenter ou de réduire le capital de la société pendant une période pouvant aller jusqu'à cinq ans.

Lors de sa séance du 2 février 2022, le Conseil fédéral a pris connaissance des résultats de la consultation sur une modification de l'ordonnance sur le registre du commerce (ORC), qui en règle les modalités. Les propositions ont été généralement bien accueillies, de sorte que le Conseil fédéral n'a pas eu à apporter de modifications majeures au projet.

Capital fixe en devise étrangère : la révision de la loi sur les sociétés anonymes permet de fixer le capital social en devise étrangère. Le Conseil fédéral, qui est chargé de déterminer les monnaies autorisées en vertu des nouvelles dispositions, a proposé une liste restreinte de monnaies lors de la consultation sur la révision de l'ORC. La majorité des avis exprimés lors de la consultation étaient favorables à l'approche proposée d'un choix limité de devises et de l'exclusion des crypto-monnaies. Le Conseil fédéral a pris connaissance des résultats de la consultation et a décidé de ne pas modifier la liste des monnaies autorisées.

Abrogation de l'Ordonnance contre les rémunérations abusives : toutes les règles relatives aux rémunérations abusives seront fixées par la loi. Le Conseil fédéral abroge donc l'Ordonnance contre les rémunérations abusives dans les sociétés cotées en bourse (ORAb) avec effet au 1er janvier 2023.

On 22 February 2022, the Federal Council published Ordinance against abusive remuneration in public limited companies listed on the stock exchange (ORAb).

The Ordinance of 20 November 2013 against abusive remuneration in listed companies will be repealed on 1 January 2023.

Version française

Le 22 février 2022, le Conseil fédéral a publié l'ordonnance contre les rémunérations abusives dans les sociétés anonymes cotées en bourse (ORAb).

L'ordonnance du 20 novembre 2013 contre les rémunérations abusives dans les sociétés cotées en bourse sera abrogée le 1er janvier 2023.

On 13 February 2022, the Comisión Nacional Bancaria y de Valores (CNBV) published communication No. 07 Considerations regarding the authorization process of Financial Technology Institutions (IFTs).

Regarding the process for granting ITF authorizations, and in consistency with the multiple communications previously issued by this authority for this purpose, it is important to reiterate that, in accordance with the provisions of article 35 of the Law to Regulate Financial Technology Institutions, the Interinstitutional Committee is composed of public servants representing the Ministry of Finance and Public Credit (SHCP), the Bank of Mexico (WB) and the National Banking and Securities Commission (CNBV), which are appointed by the respective holders.

In this sense, the CNBV, based on what was agreed by the Interinstitutional Committee whose resolutions for the granting of ITF authorizations require, at least the favorable vote of a representative of each authority, has granted the aforementioned authorizations; through this collegiate regulatory mechanism that prevents them from being defined by a single one of the authorities and much less, by a person.

In this context, this Interinstitutional Committee agrees on what is conducive and the authorizations granted are published, as appropriate, in the Official Gazette of the Federation and on the website of the CNBV, integrating the Register of Supervised Entities (PES), available in the bit.ly/PES_CNBV league.

Therefore, it is reiterated that the public servants of the SHCP, the WB and this CNBV who participate in this process, act with adherence to the law, maximum diligence, ethics and professionalism in the exercise of their powers; and in accordance with the applicable legal framework; and that it may be ITF companies that meet all the respective requirements.

On 18 February 2022, the Comicion Nacional del Mercado del valores (CNMV) published Resolution of 18 February 2022 correcting errors in Circular 1/2022, of January 10, regarding the advertising on crypto-assets presented as an object of investment.

Having noticed an error in CNMV Circular 1/2022, of 10 January, regarding advertising of cryptoassets presented as investment objects, published in the Official Journal no. 14, of 17 January 2022, the appropriate correction is hereby made:

• On page no. 4108, in the paragraph immediately before "CHAPTER I General provisions", where it reads: "... heard by the Council of State,", it should read: "... in agreement with the Council of State,". 

On 15 February 2022, the S.I. 2022 No. 137 - The Money Laundering and Terrorist Financing (Amendment) Regulations 2022 was published in the UK legislation.

These Regulations amend the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692) (the “MLRs”), mainly changing the time limits for registration of trusts but also adding further exclusions to the type of trusts which are required to register, in particular:

• amend regulation 45 of the MLRs in relation to taxable relevant trusts. The amendments postpone the main deadline for registering existing trusts by six months, to 1st September 2022 and extends the time for registering new taxable trusts, from 30 days after becoming liable to pay tax to 90 days. Regulation 4 makes similar amendments to regulation 45ZA of the MLRs in relation to the additional types of registrable trusts.
• amend Schedule 3A to the MLRs, which contains descriptions of trusts which are not registrable under either regulation 45 or 45ZA. In relation to trusts of insurance policies, the regulation adds the cases where temporary disablement cover is also included in the trust, also a trust of a healthcare cover which is not contained in a life policy. Lastly, accounts (provided by banks, building societies and similar regulated providers) which are opened solely for the benefit of children or other persons lacking capacity, are excluded from registration where the provider requires the account to be held within a trust.
• amend S.I. 2020/991 in relation to the commencement of amendments in that instrument which substitute regulation 30A (requirement to report discrepancies in registers) and add 45ZB (access to information on the register) of the MLRs. Those amendments will also now come into force on 1st September 2022.

On 28 February 2022, the UK Government published Draft Economic Crime (Transparency and Enforcement) Bill 2022.

The Bill introduces a ‘Register of Overseas Entities’ to crack down on foreign criminals using UK property to launder money.

The new register will require anonymous foreign owners of UK property to reveal their real identities to ensure criminals cannot hide behind secretive chains of shell companies, setting a global standard for transparency.

This measure forms part of the government’s strategy to combat economic crime, while ensuring legitimate businesses continue to see the UK as a great place to invest.

On 14  February 2022, the Financial Reporting Council (FRC) published  a new FRC Staff Guidance, Auditor responsibilities under ISA (UK) 720 in respect of climate related reporting by companies required by the Financial Conduct Authority. This staff guidance also includes a brief reminder of auditor’s responsibilities under ISA (UK) 720 in respect of the company’s Streamlined Energy and Carbon Reporting (‘SECR’) disclosures.

Increasingly auditors have requested guidance from the FRC, in respect of their specific responsibilities under ISA (UK) 720, following the introduction of TCFD aligned climate-related disclosure requirements for listed companies by the Financial Conduct Authority (FCA). In the FRC’s ESG Statement of Intent, published in July 2021 we stated that the FRC will monitor the need for guidance on ESG-related matters and issue audit and assurance guidance at the national level as appropriate. The guidance note is designed to address this commitment.

On 9 February 2022, the Financial Conduct Authority (FCA) published a joint communication with the Bank of England, which reflects on achievements in sterling markets, sets out what more needs to be done and provide an update on how the Working Group will operate in the future.

• Progress in sterling markets: Overnight SONIA, compounded in arrears, is now fully embedded across sterling markets. 
• What more needs to be done: The Bank of England, FCA and Working Group encourage firms to continue to pursue the active transition of legacy sterling LIBOR contracts currently using the temporary synthetic LIBOR. The Bank of England, FCA and the Working Group encourage transition to robust alternative rates, such as SOFR. Supervisors will continue to monitor UK regulated entities’ progress in transition.

On 18 February 2022, the Financial Conduct Authority (FCA) updated on delays in Change in Control function.

The update states that the FCA has seen a significant increase in section 178 notifications. Due to these high volumes, the FCA has experienced delays in allocating FCA-led notifications to case officers. Currently, there is a delay of approximately two months between submission of a complete notification and allocation to a case officer.

The FCA adds that a substantial proportion of the notifications it receives are incomplete and that processing incomplete applications takes much longer. Therefore the FCA recommends that all relevant information and documents are provided in the initial submission.

The only date by which the FCA can guarantee a decision is the end of the statutory assessment period, which is 60 working days from the date it acknowledges a notification as complete. This can be extended by up to 30 working days if the assessment period is interrupted to request clarifying information.

On 11 February 2022, the Financial Conduct Authority (FCA) updated following forms:

• Application under MIFIDPRU 4.14.6R for permission to exclude transactions with some counterparties from K-TCD requirement -Additional firm questions;
• Application under MIFIDPRU 4.12.66R for permission to use sensitivity models to calculate interest rate risk on derivative instruments in accordance with article 331(1) of the UK CRR – Additional firm questions;
• Application under MiFID 4.11.9R for permission to exclude positions taken to hedge against the adverse effect of the exchange rate on the own funds or an item deducted from capital from net open currency positions for the purpose of article 352 of the UK CRR – Additional firm questions.

On 10 February 2022, the UK Government published a summary of the responses to the call for input, its conclusions, and which measures will be explored further for the review of the UK funds regime.

The government, and the FCA where applicable, propose to take forward: 

• A review of the genuine diversity of ownership (GDO) condition; 
• Further consideration of options to improve the tax efficiency of UK authorised funds, and in particular multi-asset funds; 
• A workstream focusing on further reforms to Real Estate Investment Trusts (REITs), which will also consider the interaction of REITs with the new AHC regime; 
• Further engagement with industry to explore what authorised fund managers would find helpful in terms of additional information regarding the application process; 
• An HM Treasury, HMRC and FCA working group to progress work on permitting the distribution of capital by authorised funds; 
• Promotion of the UK’s fund offering abroad, including working with industry on further opportunities where possible; and 
• Further work to explore options for the introduction of a new unauthorised contractual scheme fund structure. 

In addition to these workstreams, the government, and the FCA where applicable, will also be working to enhance the UK funds regime through: 

• A consultation on options to simplify the VAT treatment of fund management fees; and 
• Ongoing work to facilitate the rollout of the LTAF, including: the continued work of the Productive Finance Working Group; a planned FCA consultation on potentially changing the restrictions on the promotion of LTAFs to allow distribution to a broader range of retail investors; and continued assessment of the case for any further changes to the way LTAFs are taxed.

On 9 February 2022, the U.S. Securities and Exchange Commission (SEC) voted to propose new rules and amendments under the Investment Advisers Act of 1940 (Advisers Act) to enhance the regulation of private fund advisers and to protect private fund investors by increasing transparency, competition, and efficiency in the $18-trillion marketplace.

The proposed rules would increase transparency by requiring registered private fund advisers to provide investors with quarterly statements detailing certain information regarding fund fees, expenses, and performance.

Additionally, the proposed rules would prohibit private fund advisers, including those that are not registered with the SEC, from providing certain types of preferential treatment to investors in their funds and all other preferential treatment unless it is disclosed to current and prospective investors.

The proposed changes also would create new requirements for private fund advisers related to fund audits, books and records, and adviser-led secondary transactions.

The proposals also would prohibit all private fund advisers from engaging in several activities, including seeking reimbursement, indemnification, exculpation, or limitation of liability for certain activity; charging certain fees and expenses to a private fund or its portfolio investments, such as fees for unperformed services and fees associated with an examination or investigation of the adviser; reducing the amount of an adviser clawback by the amount of certain taxes; charging fees or expenses related to a portfolio investment on a non-pro rata basis; and borrowing or receiving an extension of credit from a private fund client.

In addition, the SEC proposed amendments to the Advisers Act compliance rule that would require all registered advisers, including those that do not advise private funds, to document the annual review of their compliance policies and procedures in writing.

The public comment period will remain open for 60 days following publication of the proposing release on the SEC’s website.

On 10 February 2022, the U.S. Securities and Exchange Commission (SEC) announced that it proposed rule amendments governing beneficial ownership reporting under Exchange Act Sections 13(d) and 13(g). The proposed amendments would update those rules to provide more timely information to meet the needs of today's financial markets.

The proposed amendments to Regulation 13D-G would accelerate the filing deadlines for Schedules 13D beneficial ownership reports from 10 days to five days and require that amendments be filed within one business day; generally accelerate the filing deadlines for Schedule 13G beneficial ownership reports (which differ based on the type of filer); expand the application of Regulation 13D-G to certain derivative securities; clarify the circumstances under which two or more persons have formed a "group" that would be subject to beneficial ownership reporting obligations; provide new exemptions to permit certain persons to communicate and consult with one another, jointly engage issuers, and execute certain transactions without being subject to regulation as a "group;" and require that Schedules 13D and 13G be filed using a structured, machine-readable data language.

The public comment period will remain open for 60 days following publication of the proposing release on the SEC's website or 30 days following publication of the proposing release in the Federal Register, whichever period is longer.

On 9 February 2022, U.S. Securities and Exchange Commission (SEC) voted to propose rule changes to reduce risks in the clearance and settlement of securities, including by shortening the standard settlement cycle for most broker-dealer transactions in securities from two business days after the trade date (T+2) to one business day after the trade date (T+1). The proposed changes are designed to reduce the credit, market, and liquidity risks in securities transactions faced by market participants and U.S. investors.

In addition to shortening the standard settlement cycle, the proposal includes rules directed at broker-dealers and registered investment advisers to shorten the process of confirming and affirming the trade information necessary to prepare a transaction for settlement so that it can be completed by the end of trade date. Further, the proposal includes a new requirement to facilitate straight-through processing, which would apply to certain types of clearing agencies that provide central matching services. Central matching service providers help facilitate the processing of institutional trades between broker-dealers and their institutional customers. The proposed rule would require new policies and procedures directed to straight-through processing and require an annual report on progress with the process.

With the goal of shortening the settlement cycle further, the proposal solicits comments on challenges associated with and potential paths to achieving a same-day settlement cycle.

The public comment period will remain open for 60 days following publication of the proposing release on the SEC’s website or 30 days following publication of the proposing release in the Federal Register, whichever period is longer.

On 18 February 2022, the Federal Reserve System (FED) announced that it unanimously formally adopted comprehensive new rules for the investment and trading activity of senior officials. The rules, which were first announced in October 2021, aim to support public confidence in the impartiality and integrity of the Committee's work by guarding against even the appearance of any conflict of interest.

Under the new rules, senior Federal Reserve officials are prohibited from purchasing individual stocks or sector funds; holding investments in individual bonds, agency securities, cryptocurrencies, commodities, or foreign currencies; entering into derivatives contracts; and engaging in short sales or purchasing securities on margin. Additionally, senior Federal Reserve officials will be required to provide 45 days' non-retractable notice for purchases and sales of securities, obtain prior approval for such transactions, and hold investments for at least one year. Purchases and sales also will be prohibited during periods of heightened financial market stress. These new rules supplement existing rules that prohibit Federal Reserve officials from holding bank stocks and Treasury securities and from engaging in financial transactions during a blackout period around FOMC meetings.

Monaco published five legislative acts on anti-money laundering and combating the financing of terrorism:

1. On 11 February 2022, Monaco published Law No. 1.520 of February 11, 2022 supplementing Law No. 1.503 of December 23, 2020 strengthening the system for combating money laundering, terrorist financing and corruption.

2.On 11 February 2022, Monaco published Law No. 1.521 of 11 February 2022 on various criminal measures to combat money laundering and fraud and counterfeiting of non-cash means of payment.

3.On 18 February 2022, Monaco published Corrigendum to Law No. 1.521 of 11 February 2022 on various criminal measures to combat money laundering and fraud and counterfeiting of non-cash means of payment.

4.On 18 February 2022, Monaco published the Sovereign Ordinance n° 9.098 of 11th February 2022 amending Sovereign Ordinance n° 8.664 of 26th May 2021 on procedures for freezing funds and economic resources in application of international economic sanctions.

5. On 18 February 2022, Monaco published the Ministerial Order Nr 2022-85 dated February 14th, 2022 implementing Sovereign Order Nr 2.318 dated August 3rd , 2009, amended, setting the conditions for application of Act Nr 1.362 dated August 3rd , 2009 on the fight against money laundering, terrorist financing and corruption, as amended, determining the amount of the fees for access to information in the register of beneficial owners.

On 24 February 2022, the Brazilian Financial and Capital Markets Association (ANBIMA) informed  that ANBIMA offers a new tool to assist the market in the process of preparing some of the mandatory documents of public offerings. 

From now on, the debentures and summary of debentures can be generated automatically, by completing an easy, standardized and customized form according to the answers provided by the user. Access is free (it is only necessary to request registration here on our website through the link).

On 17 February 2022, the Banco Central do Brasil (BACEN) published Resolution No 4980 amending Resolution No 2838 concerning the activity of an independent investment broker.

The amendment provides the amendment of the independent investment broker as a natural or legal person who has as his activity the distribution and mediation of securities, shares of investment funds and derivatives, always under the responsibility and as the representative of the institutions that are part of the securities distribution system of which Art. 15 of Law No. 6385.

On 7 February 2022, the Comissão de Valores Mobiliários (CVM) published Resolution 64 regarding non-resident investors.

The non-resident natural person investor is exempt from obtaining the registration and its representative must send, prior to the start of operations, investor in the country, the information requested in an electronic system made available by the CVM by the organized market management entity that has formalized an agreement or similar instrument with the CVM for this purpose.

On 3 February 2022, the Brazilian Financial and Capital Markets Association (ANBIMA) published the new version of the Certification Code, which went through a public hearing this year. The reformulation fits the text with the novelties brought by the inclusion of the FIP (Equity Investment Funds) Annex of the Third Party Resource Management Code, which will enter into force from March 2.

The new version of the Certification Code will take effect from 2 March 2022. Two other documents were also updated: Rules and Procedures for Defining Structured Funds and Rules and Procedures for Dispensing Examinations. The first includes the FIP in the list of products self-regulated by the Certification Code, while the second guides how institutions can request exemption from the cge (ANBIMA Management Certification) exam if they attest to the experience of their professionals in the management of FIP resources.

The main modifications to the code are:

• Expansion of the scope of CGE, which becomes mandatory also for the members of the committee of the institution and /or FIP who operate in the activity of management of third-party resources and have discretionary investment of the assets that are part of the FIP portfolio.
• Disclosure of deadlines for professionals from institutions working in FIP management to obtain CGE.

On 1 February 2022, the International Securities Lending Association (ISLA) published their CSDR Penalties Best Practice Guidelines.

To coincide with the implementation of the much-anticipated Central Securities Depositories Regulation (CSDR) settlement discipline regime entering into force across the European Union today, 1 February 2022, ISLA is pleased to announce the publication of the ISLA CSDR Penalties Best Practice Guidelines for the cash penalty regime.

The aim of the guidelines is to assist market participants with the implementation of CSDR ensuring that penalties are fairly distributed and applied to the party at fault.

The best practices defined by ISLA, have been developed and validated through the ISLA Market Practice Steering Group, with developments being recorded within the working document.

The best practices include recommendations on:

• Timeframe & Minimum Threshold for Claims [IBP-141]
• Netting of Claims [IBP-340]
• Partialling [IBP-125]
• Liability Cap [IBP-140]
• Sale Notifications [IBP-339]
• Collateral Movements [IBP-169]

ISLA continuously enhances the ISLA Best Practice Handbook with any developing changes and establishes if contractual amendments to the Global Master Securities Lending Agreements (GMSLA) are necessary in the future.